There was an apparent air of urgency as special counsel Jack Smith requested that the Supreme Court reject immunity claims made by former president Donald Trump.
More than twelve times in his brief, Smith warned the court against additional “delay” during that time.
Since all the required briefs were submitted with the justices eight days ago, and two weeks have passed since Trump requested the court to intervene in the charged dispute over his potential immunity from prosecution, court observers have taken up a practice nearly as old as the Supreme Court: attempting to deduce significance from the timing and lack of action.
According to Steve Vladeck, an AWN Supreme Court analyst and professor at the University of Texas School of Law, “the entire population is getting a bit of exposure to one of the perils of watching the court carefully, which is that an awful lot of what it does happens behind the scenes and in ways that can’t be easily predicted.”
If Trump’s attempt to have a lower court decision against his immunity claims denied is successful, Smith’s case will likely go back to trial. It may agree to Trump’s request, then decide quickly on the merits of the immunity issue when arguments are held. It may reach a conclusion on the matter without debate. It may or may not provide an opinion detailing its decision.
By the standards of the judicial branch, the Supreme Court can move swiftly. The majority of its significant cases, however, take months to finalise. Disputes can still take weeks to resolve, even on the court’s emergency docket.
Clearly, the time is of the utmost importance. In order for US District Judge Tanya Chutkan to conclude the trial on the former president’s accusations of election subversion before the November election, Smith is keen for the court to swiftly resolve Trump’s immunity claim. A prior trial start scheduled for March 4 has already been rescheduled by Chutkan.
Maybe foreseeing this outcome, Smith had previously petitioned the Supreme Court in December, requesting that the justices bypass the DC Circuit Court of Appeals and offer a “speedy resolution” to the subject of whether a former president can assert immunity from criminal prosecution.
If Trump’s claims of immunity are rejected, a trial must go place “as promptly as possible” because “it is of imperative public importance,” Smith stated at the time.
With that denial, the matter was sent to the appeals court for consideration by the Supreme Court.
In the opinion of some legal analysts, Trump’s bid to have the Supreme Court block the DC Circuit decision becomes increasingly unlikely the longer the process takes. The premise upon which that thesis is based is that conservative justices may take their time drafting lengthy dissenting opinions from decisions.
Randall Eliason, a law professor at George Washington University and a former federal prosecutor, emphasised that the details behind the scenes are unknown. It is unclear whether the justices addressed the immunity case during any of their three meetings, one of which was on Friday.
Even with those qualifiers, Eliason thinks the former president should be worried about getting extra time.
For Eliason, “that’s the most likely reason” was the prevailing opinion. Someone is penning a dissenting opinion.
Typical of such situations, there is little evidence of internal conflict. Judges Amy Coney Barrett and Sonia Sotomayor were in attendance at a National Governors Association meeting on Friday, the topic of which was “disagree better.” Both of the high-profile Trump matters that are now before the court were notably absent from the agenda.
Life tenure does separate us from politics, so it’s not just that we’re not Obama judges or Trump judges, but we’re also not Democratic judges or Republican judges,” Barrett, who was appointed by Trump, added. “We are not seated on opposing sides of a room. Our robes are identical in colour: black. Red robes and blue robes do not exist among us.
According to Sotomayor, who was appointed by Barack Obama, lifetime appointments allow the judges the “freedom to grow as we grow in the job.”
Also, keep in mind that presidents usually don’t serve for very long, which is good news for us. She mentioned eight years. “And thus, it’s a bit insane that we should be dependent on just one of them.”
The easiest way for the Supreme Court to get out of the Trump controversy fast would be to turn down his plea to halt the lower court’s decision.
That would uphold a 57-page DC Circuit decision that allowed Trump to face charges for his actions while in office, rejecting his claims of immunity earlier this month. A conservative may voice their opposition to such a decision.
Vladimireck stated, “The longer it takes the court to act on former President Trump’s application, the less likely it seems that the court’s ruling will be a precursor to some additional process,” referring to the potential delay in the case’s next argument. “Rather, the longer we wait, the more likely it is that we will reach a final agreement.”
On its emergency docket, the court rules on hundreds of cases annually, including numerous technical ones. Most of the time, we can resolve such concerns, such requests for deadline extensions, in a few days.
However, if more than one justice is required to write an opinion, the case may take longer due to its complexity and the political tensions surrounding it. The preliminarily hearing on a recent emergency case concerning the Boy Scouts of America’s bankruptcy settlement took the court approximately eleven days. The legal dispute that broke out last month over razor wire that Texas was putting on the US-Mexico border took 20 days for the court to handle, from the initial filing to the order.
The court in the Boy Scouts of America case decided not to block the organization’s $2.46 billion bankruptcy settlement. By siding with Biden’s administration, it allowed DHS to remove the wire that Texas had set up along the border.
However, the Supreme Court does not rush things. At the same time, the justices are deliberating on a second high-profile issue involving the potential removal of Trump’s name off the ballot due to his involvement in the assault on the US Capitol on January 6, 2021, under the 14th Amendment’s “insurrectionist clause.”
During their nearly two hours of oral argument on February 8, the justices hinted that they would likely support Trump in that disagreement; nevertheless, settling on the reasons could be difficult and need extensive negotiation.
Even if Smith wants to get to the immunity matter fast, it’s doubtful that a few days or weeks would significantly affect when Trump’s trial is scheduled.
“I don’t think a few more days or even a couple of weeks makes much difference right now,” Eliason stated in reference to the timing of the Supreme Court’s decision). Regardless of the Supreme Court’s decision today or next week, I believe a June trial is the best possible outcome for DC right now.
